1. Building A New Tower of Babel: A Conceptual Framework for the Rule of Law
Conceptual Confusion
The Lessons of Law and Development Studies
Economists Take Over
Conceptual confusion
The Lessons of L&D (don’t give up the rule of law)
Economists Take Over (Worldbank Speak, no longer the core of the Rule of Law)
Why is this serious: the normative appeal of the rule of law - from Mugabe to Soeharto
Approach: how has the model been developed (show Tamanaha)

2. Unanimity: Two Functions of the Rule of Law
Protecting citizens against the state
Protecting citizens against each other

3. The Rule of Law in Categories and Elements
SUBSTANTIVE
PROCEDURAL
Traditional categories
Why a new one:to stress the institutional side of rule of law (logically: procedure, substance, institutions)
2) it has become more diverse
3) it also reflects the socio-legal approach taken: each element concerns both normative and empirical issues
How will I proceed in this lecture:
1) Show the categories
2) Make a very brief assessment of the Indonesian situation concerning that element in the category concerned (with great limitations in knowledge & problems concerning time and space - knowledge of the audience: minta maaf atas segala kekurangan saya)
3) Conclusions about how the model can be used and how it cannot be used
4) Before I proceed: there are 11 elements
MECHANISMS OF CONTROL

4. PROCEDURAL ELEMENTS The state rules by law
State actions are subject to law
Law is clear, certain, predictable and accessible
The law is determined or influenced by consent
Aristotle / ‘In the beginning there was procedure’
1 and 2 are the core elements, 3 is almost a core element, 4 is disputed
Rule by law
- importance underestimated: predictability of state behaviour
- failed states / rule by party decrees / ‘outlawing’ groups of citizens
State acts are subject to law
- core meaning of the ‘rechtsstaat’
- can also be the case in authoritarian states, but hard to give currnt examples
- Law is clear, certain, accessible, predictable and general
-any state must struggle to achieve this: example of Dutch business regulations
-general is problematic: affirmative action
-The law is determined by consent
-The issue of democracy

5. SUBSTANTIVE ELEMENTS Principles of justice, morality, and fairness
Individual rights and liberties
Social-economic rights
Group rights
John Locke
More central in the English rule of law
Natural law
1st and 2nd generally accepted, 3rd and 4th controversial
1st is important, as it allows for just application of the law

6. MECHANISMS OF CONTROL Independent Judiciary (Trias Politica)
Special Institutions
2 is central in any rule of law definition. 1 is quite important in practice, 3 is new (compare Pak Haryono)

7. Independent Judiciary
MECHANISMS OF CONTROL 1
Independent Judiciary
No legal and practical guarantees for independence
No legal and practical guarantees for impartiality
Bad judges
No access to justice
No adequate jurisdictionary powers
No implementation of judgments
In all these cases enormous progress has been made. Remaining problem: bad and/or corrupt judges.
Implementation of judgments (administrative courts) - improved?
Access to justice: slowly; knowledge has improved
Backlogs?
Exceptions:

8. CONCLUSIONS
This conceptual framework may help to analyse allegations made in the name of ‘the rule of law’.
It contains both normative and empirical elements.
It may assist in assessing the state of ‘the rule of law’ in a given case and setting a research agenda.